Get an understanding of the Danish consultation draft for the new bill on time registration.
The time clock has long gone out of fashion, but now it might be reintroduced in all Danish workplaces in either physical or digital form.
The Danish Ministry of Employment has sent a draft of a bill for external consultation which will entail a number of significant changes to the act on implementation of parts of the working time directive. The bill will, among other things, oblige employers to implement an objective, reliable and accessible time registration system which makes it possible to track the actual daily working time for each individual employee.
The bill is a response to the decision of the European Court of Justice from 2019 which emphasizes the importance of exact time registration to protect workers’ rights. This step is necessary to ensure compliance with the working time regulations in the Working Time Directive. Even though the judgment required the introduction of a time registration system, it did not provide exact details of the implementation which gives the member states discretionary power in accordance with EU rules. As an EU member, Denmark is obliged to comply with this decision and adjust national legislation accordingly.
We have gathered a number of questions and answers to help you understand the new bill:
What is the purpose of the bill?
The background to the bill is the decision of the European Court of Justice from 14 May 2019 arising from a case against Deutsche Bank in Spain. The judgment emphasized the importance of employers in EU countries establishing a system which objectively, reliably and accessibly records the daily working hours of all employees.
The purpose of the bill is therefore to ensure compliance with the EU Working Time Directive of 2003. This directive sets a maximum of 48 working hours per week (an average over a 4-month period), secures a rest period of minimum 11 consecutive hours per day and gives the right to at least one day off per week. By introducing a time registration system, the aim is to create transparency, allowing companies to ensure compliance with these rules on daily and weekly rest time as well as the maximum weekly working time.
It is, however, important to note that according to the bill, employers have methodological freedom when implementing the time registration system, as long as the system meets the applicable requirements.
What does registration of daily working hours entail?
In their decision from 14 May 2019, the European Court of Justice ruled that systems which only record overtime or only partially record working time will be insufficient. The reason is that employees must be guaranteed that the maximum average weekly working time, including overtime, is not exceeded and that the minimum daily and weekly rest periods are always observed.
This means that if a company automatically inserts normal time and only requires that the employee register deviations and absence, this can potentially be seen as an insufficient method. The reason is that such an approach does not necessarily give an accurate picture of the employee’s real working hours. The system should therefore support real registration of the employee’s attendance (clock-in/ clock-out) as this will give a more accurate picture of how many hours the employee actually works, thus complying with the intention of the European Court of Justice to protect employees’ rights.
Are there exceptions to the time registration requirement?
Yes, there will be some exceptions from the time registration requirement. For example, some management positions and particularly trusted positions can be exempt from the requirement. In addition, there may be specific agreements or collective agreements that apply to certain industries or positions which may result in additional exceptions. It is expected that the exact details and limitations of these exceptions will be further elucidated when the upcoming bill is presented in the Danish Parliament.
For how long must data be stored?
The bill suggests that employers must keep registered information about employees’ daily working hours. This information must be kept for 5 years after the end of the period which forms the basis for the calculation of the employee’s average weekly working hours.
Who should have access to time registration data?
Registrations must be accessible for both the employer and the individual employee. This increases transparency and allows employees to check and ensure that their working time is compliant with applicable laws.
When is the bill expected to come into force?
The law is expected to come into force on 1 January 2024. However, the bill is currently under consultation and discussion in the Danish Parliament and changes may therefore occur in the final draft bill which is expected to be presented in early November 2023. The consultation period expired on 12 October.
Some stakeholders are working to introduce a transitional arrangement where the law will not come into force until 1 July 2024. This proposal for a later date has been discussed out of consideration for companies’ ability to adapt to the new rules.
What are the consequences of non-compliance?
Employers who do not comply with the stipulated working time regulations face potential consequences such as fines issued by the Working Environment Authority, demands for compensation for affected employees and possible other legal consequences.
What will happen now?
Now that the consultation period ended on 12 October, the authorities have begun to analyse and evaluate the comments and suggestions provided by stakeholders. This might result in modifications to the bill. The finalized bill is anticipated to be presented in the Danish Parliament in early November 2023, where it will be subject to additional review and discussion.
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